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Sunday, September 30, 2012

Representative Suits: “Interest”, “Cause of Action” and “Act”

In my last post, I had discussed the requirements of a representative suit under Order 1, Rule 8 of the CPC. The explanation to O.I, R.8 clarifies that those claiming to file a representative suit need only have the “same interest”, they need not have the “same cause of action”.

Why does the CPC not use the words “acts or transactions” in Order 1, Rule 8, when Order 1, Rule 1 speaks of “acts/transactions”?

Order 1, Rule 1 deals with joinder of parties as Plaintiffs. The Rule permits joinder of parties as Plaintiffs so long as:

1. the relief is sought in respect of the same act or transaction or series of acts or transactions; AND

2. a common question of law or fact would arise if different suits were instituted by the parties seeking relief.

However, in Rule 8, the CPC does not speak of same acts/transactions, nor does it speak of common cause of action, it refers to the “same interest”. First of all, this means "act/transaction" is different from “cause of action”.

Technically, an act gives rise to a cause of action. What this means is that an actionable cause arises from an act since the act amounts to infraction of a party’s right. For instance, selling a patented product without consent is the act, it gives rise to a cause of action since it infringes the patentee’s rights.

It could so happen that the same act could mean different things for different parties, which means it could gives rise to different cause of actions between different parties. For instance, in the above example, selling a product could involve infringement of patent as well as a trademark, with both rights being held by different persons. In such a case, the causes of action for both right holders would be different although the act concerned is the same.

Both these right holders may be joined as Plaintiffs under Order 1, Rule 1 of the CPC since the act is the same and there is a common question of fact, although there is no common question of law since the rights are different in nature.

This explains the difference between “act” and “cause of action”. But if Order 1, Rule 1 already provides for such joinder of plaintiffs and Order 1, Rule 3 provides for joinder of defendants, where is the need for Order 1 Rule 8?

Order 1, Rule 8 uses the word “interest” to increase the scope for joinder of parties beyond the scope provided for in Rule 1 and Rule 3. The word “interest” has been used to facilitate adjudication of all questions which arise from the same set of acts/transactions. This is basically a provision to avoid multiplicity of litigation where all persons are aggrieved by the same act/transactions.

In particular, Rule 8 has two concrete applications. The first is where the party affected by an act is not a juristic entity. Only a person, natural or juristic, may sue or be sued. In the case of a registered society which is not a juristic person, one member of the society may represent the interests of all members, instead of including all members of the society as “necessary parties”.

In other words, under Order 1, Rule 1 all Plaintiffs need to be named, however, under Rule 8, one person may represent all other “interested parties”.

For instance, if a host of tenants have an issue with an act of the landlord, instead of filing multiple suits or instead of naming all tenants as parties in one suit, one tenant may represent all the others.

Further, Rule 8 vests the Court with suo motu powers to direct one or more persons to act on behalf of all other parties. In the same landlord-tenant example, the Court may itself direct one tenant to represent the rest.

Therefore, Rule 8 enlarges the scope of joinder of parties so long as there is a communion of interests between the parties.